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Petition

McKenzie right to have audience with unrepresented friend

Petition presented to Parliament.

On the 23 Nov 2009, 3 petitions were presented to the Federal Parliament on behalf of a father denied justice (right to appeal) in the Family Court and denied the right to present Oral Argument in the High Court. They seek the establishment of an independent Judicial Committee of Inquiry to redress complaints of judicial misconduct and to legitimise the rights of a McKenzie Friend to examination of the Friend in self-represented cases.  

The petition: “Urgent laws a McKenzie Friend has rights”
Seeks, in short, Law to reinforce the right of a McKenzie Friend to have audience with the Friend in regard to his/her examination and re-examination, and the right to object to improper and/or unfair cross-examination of the Friend, which currently is solely at the discretion of the judge and more often than not denied to the McKenzie Friend. This reliance on discretion compounds the inherent disadvantages of self presenting one’s own evidence from the witness box without notes, of emotional involvement causing failure to present all the evidence needed and to defend that which is presented, complicit with the ignorance of inexperience and fear of the Court process itself. A McKenzie Friend would have the notes for all the evidence to examine with and cross-examine the Friend and others with less emotional involvement or fear of the Court process.

The petitions can be viewed at;  http://www.aph.gov.au/Hansard/reps/dailys/dr231109.pdf  each titled; Administration of Justice, from page 90, HOUSE OF REPRESENTATIVES, Monday, 23 November 2009.


   Administration of Justice [Regarding; Urgent laws a McKenzie Friend has rights]

   To the Honourable the Speaker and Members of the House of Representatives;
   This petition of a ‘resident of Australia’ (father) and ‘Certain citizens of Australia’    namely his 2 children, draws to the attention of the House issues regarding the
   proper administration of justice and unfairness caused persons lacking legal
   representation.

   Persons seeking justice without representation is a growing issue and burden on
   the Federal Courts, namely the Family Court. These persons have a right to a
   McKenzie Friend.

   The assistance of a McKenzie Friend is often limited to note taking but the
   right to inspect evidence, the right of audience in the presentation of evidence,
   and the like is denied.

   It appears this is due to persons trained at law being fearful that the
   disadvantage caused to the unrepresented person, by lack of representation,
   may be reduced if the Friend gives any more help than note taking.

   We pray the House;
   Urgently makes laws which define the rights and obligations of a McKenzie
   Friend, for the Family or Federal Courts that mirror the Family Court Rules
   for a Case Guardian including the right of audience but not the right to make
   written applications on behalf of the party.

   Furthermore, make Law that the words ‘any person holding office under the
   Commonwealth” stated in “section 33 of the Judiciary Act 1903(Cth)” means or
   includes in its meaning “Commonwealth public official” as defined by the “
   Criminal Code Act 1995(Cth)” to enable corrections to judicial wrongs and
   errors in the High Court.

   by Mrs Irwin (from 1 citizen)




All those wishing to add their signature to each or any of the petitions please email housepetitions_23_11_09@hotmail.com stating the petition by the subject as below in the subject line of the petition you wish to add your signature to;                         

    “section 72(ii) of the Constitution of Australia (Cth)”
    “Judicial Committee of Inquiry”
    “Urgently laws a McKenzie Friend has rights”

I will then forward you a copy of the original petition in pdf that you can print, add your signature to the bottom of and post to;

House of Representatives Standing Committee on Petitions
PO Box 6021
Parliament House
Canberra ACT 2600

Is there a specific judgement wherein the exclusion of a 'McKenzie friend'  caused injustice and unfairness.
If the judgement has been published then a link might assist in understanding the merits of the argument.
Should grounds exist that permit the case to be referred on to the Full Court or High Court it would seem that this would be a more decisive route.
How many petitioned against the Iraq War, what was achieved?
The 'protected species' rights enjoyed by the legal industry are at the expense of the community.
When a Family Law Magistrate was heard to say that "even the legal industry cannot afford the costs" there is concerns. Baumnan FM.
This generates the consideration as to whether a party uncertain about being able to act for their self might advantageously seek a 'case gaurdian' as a means of having a McKenzie friend speak for them?

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
How many people do the members of this site help but cannot help those people by asking the questions for those persons evidence in chief required for a proper presentation of the SRL's case?

How often are SRL's caused to answer questions that should be objected to but cannot be because the SRL is a witness and there is nobody in their corner with the right of audience who can object to the question on behalf of the SRL/witness?

How often are SRL's caused to be short on the evidence, that is, only give some of their evidence in chief because they forget to include that evidence in the statement they are allowed to present as their evidence in chief?

Would Law made by Parliament caused by numerous members of this site supported by signing the petition, help the members of this site help the SRL's they are helping?

The Common-Law (Law from England and made by judges) is; that a McKenzie Friend can do all that a Case or Litigation Guardian can other than make written applications. The problem is the SRL must know the Law of fairness and best case for that right to prevail over the objections of Counsel who know the arguments against such rights.

Thank you to McKenzie friend - Wikipedia, the free encyclopedia

The Original McKenzie Friend

The original McKenzie Friend was an Australian barrister in London, Ian Hanger, now a QC at the Queensland Bar, whose qualifications in law in Australia did not allow him to practise as a barrister in London. Hanger was sent the brief by the firm of solicitors, Geoffrey Gordon & Co for McKenzie one day prior to the hearing. McKenzie was unable to afford legal assistance, didn't qualify for legal aid, and had not maintained consistent contact with Gordon. Hanger sat with his client to provide what quiet assistance he could from the bar table to a man representing himself. The trial judge asked Hanger to desist from doing what he was doing and this became the basis of the appeal by Gordon against the judgment against McKenzie.
What a McKenzie Friend cannot do
   Act as a legal representative.
   Exercise rights of audience, unless
o   invited to speak by the judge, or
o   in hearings in a local small claims court.    

Financial basis

Although in many cases a McKenzie Friend may be an actual friend, it is often somebody with knowledge of the area giving up their time on a pro bono basis. Out-of-pocket expenses, if requested, are typically covered by the litigant in person.
Since McKenzie Friends are not legal representatives, they cannot charge their time to the case at legal rates. A nominal hourly rate is recognised by some courts for the purposes of recovering costs from the other side in the event of a win.
McKenzie Friends may be liable for any misleading advice given to the litigant in person but are not covered by professional indemnity insurance.

Case Law applicable is best obtained from England so I seek you read the case of the link that follows; O'Connel & Ors (Children) Rev 2 [2005] EWCA Civ 759 (22 June 2005)

Examples of what this case considers are;

110.   Mr. Spon-Smith then cited the extract from the judgment of Thorpe LJ (with whom Dame Elizabeth Butler-Sloss and Rix LJ agreed, and which we have set out at paragraph 3 above). Mr. Spon-Smith questioned whether permitting the disclosure of summaries was a satisfactory solution. He identified a number of its disadvantages: (1) it did little to preserve confidentiality; (2) it potentially hampered the ability of a McKenzie friend to assist the litigant; (3) it raised the question of who was to compose or approve the summaries (an issue not addressed by this court in Re G), especially when there were no 'independent parties' to the proceedings (such as a children's guardian or a local authority); (4) it was likely to give rise to satellite litigation as to (a) what should be included and what omitted and (b) whether the summary was accurate.
111.   Mr. Spon-Smith argued that the right of a litigant in person (subject to the over-riding discretion of the court) to the assistance of a McKenzie friend was significantly emasculated if the litigant could not show the documents in the case to the McKenzie friend. It was, he submitted, difficult to see how (to take one example) a McKenzie friend could suggest questions which the litigant might put in cross-examination if he had not seen the witness's statement. It would also, he suggested, be slightly absurd since - if the McKenzie friend was present during the hearing - he was going to hear the oral evidence, submissions and judgment. It seemed fair to assume that hitherto McKenzie friends in cases relating to children had in fact routinely seen the statements and reports filed in the proceedings without anybody concerned thinking anything of it or (it would seem) any adverse consequences ensuing.
112.   Without having any intention to cast aspersions upon the proposed McKenzie friends in the present cases (of whom Mr. Spon-Smith knew nothing) he thought it right to draw attention to the fact that all those to whom disclosure was permitted under FPR 1991 r.4.23(1) were (other than the parties themselves) acting in a professional or official capacity. Thus Mr Spon-Smith submitted that it might be considered appropriate as a condition of giving permission for disclosure to a lay adviser to require them to give a written undertaking to the court not to make or permit further disclosure without the court's permission.

To answer the following read the above:

Furthermore, does verdad know a Case Guardian is appointed to those of us who have a mental impairment or is verdad claiming all SRL's have a mental impairment demonstrated by our need to be SRL's?
Sorry verdad, you do some excellent work on this site but I think, yes IIIII think, you do not grasp the Law being sought.
The Law sought would set out the rights of members and all McKenzie Friends to give the best they can to the Party and the Court that is lacking from most cases SRL's are caused for their own reasons to present.
The other petitions cited; are in regard to how wrongful misbehaviour and complaints about judicial misbehaviour are handled.
That is, they support the Senate findings in the enquiry into the "Role of judges" regarding the complaints handling system which is by a judge or judges sitting in judgement on their own Brethren. They also support the ALRC findings in regard to the enquiry into the "Royal Commissions Act" that there is a need for a "Permanent Independent Commission of Enquiry" and an Act to support such, unless I'm mistaken, yet to be presented to Parliament caused by the AG (Cth) who has refused to step up to the plate for a couple of HC matters where the AG could have caused judges to be accountable for their, cited on this site as doing obstructions or wrongs, to be accountable.

The members of this site who act as McKenzie Friends would find this Law helps them in assisting those they stand beside in the Court, therefore the Court in less complicated cases and less time in the presentation of the case.

To cause this to happen request a copy of the original petition from housepetitions_23_11_09@hotmail.com

I give an undertaking to all that no email addresses will be collected and only a reply will be used, then deletion of the request for the petition copy will be occur.
The poster obviously has very personal reasons for 'his' petition, however the reasoning is somewhat convoluted and incorrect in some areas. We would also like to remind the poster that this is Australia and not the UK. Historically in Australia McKenzie Friends do not have a good reputation, and institutional memory will remind the Courts of how this process was badly abused in the early 70s.

The McKenzie case reinforced the Tenterden 1831 decision to 'have a friend it next to you'. At no stage did it go beyond that concept. At the time Hanger was a junior solicitor working in London  (the Wikipedia article incorrectly lists him as a Barrister) It should be remembered that in the 70s the Australian and UK Courts were joined at the hip. In subsequent years their Family Law Acts and the open Court have changed this considerably.

McKenzie is a term used in many English speaking Countries, however its implementation is different in many cases.

In the UK the term McKenzie Friend is used by tribunals and such where the McKenzie Friend can advocate. In the Family Division of the High Court the role of the McKenzie Friend is defined by Court directions and although they have greater access to materials they are not allowed to advocate. They are sometimes allowed to present basic information if a Judge believes the litigant would be better aided by this. It should be remembered that these Courts are also closed unlike Australian Courts which are open to the public. Mixing UK law into Australian is not a wise concept.

Unlike some Countries Australia does recognise that a person has a right to represent themselves in the Family Courts be it for financial or other reasons. However it should be remembered that a Court has the right that you will not waste its time and resources and that its function is not to act as your teacher. Additionally  the Court has a right that you do not hinder the progress of any hearing to the detriment of another party because you are representing yourself.

The SRL project of 2001 was an attempt to examine the problems faced by SRLs. Even Nicolson in a precedent talked of the 'lack of a level playing field'. Over the years many of the judiciary have examined ways to make the role of the SRL easier.

There have been many discussions of late with the judiciary to consider the introduction of semi professional friends. However the problem is that the person is not normally bound by formal Court rules and how would a Court determine the expertise of a McKenzie Friend?

At no stage has an SRL-R Exec ever been refused permission to act as a McKenzie Friend and this might be a familiarity with them by the Court, knowing their expertise. On several occasions SRL-R people have been positively named in Judgements in assisting the case. One particular Judge even makes humorous remarks about the last name of a particular McKenzie Friend and sometimes directs complex legal arguments directly to him and the SRL for him to interpret for the SRL. This might illustrate that some McKenzie Friends are more acceptable, hence the current thinking of how to 'vet them'.

Occasionally the Court will appoint a Case Guardian (who may not be professionally qualified) to act for the SRL. In these cases the Court must be satisfied that the SRL has some serious problem (usually mental) that prevents them from understanding the true nature and consequences of the case or being able to present it. Lack of legal knowledge, poor Education or use of English or bad nerves  does not lead to a Case Guardian.

Justin said
A nominal hourly rate is recognised by some courts for the purposes of recovering costs from the other side in the event of a win.

In the UK with some tribunals but not in Australia, and since the Family courts are Civil Courts there is no use of the term 'win'.

Justin said
Furthermore, does verdad know a Case Guardian is appointed to those of us who have a mental impairment or is verdad claiming all SRL's have a mental impairment demonstrated by our need to be SRL's?
Sorry verdad, you do some excellent work on this site but I think, yes IIIII think, you do not grasp the Law being sought.
Verdad does know very well the importance of a Case Guardian and he probably does grasp the 'so called' Law being sought, however he is experienced and wise enough to know what is achievable through petitions. He also knows full well the other major role, that the prior preparation and research by an experienced McKenzie Friend can be formidable, even when he does not sit next to someone in the Court.

Petitions do not work in Australia. Changes to the Law are normally by groundswell, committees and a very great deal of background work. You might also be wise seeking the counsel of the SRL-R group who control the Family Law forums on this site before you start trying to present petition information to Parliament that might differ from what the SRL-R and SPCA have been working on.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
"SRL-Resources said "Verdad does know very well the importance of a Case Guardian and he probably does grasp the 'so called' Law being sought, however he is experienced and wise enough to know what is achievable through petitions."

This is the essence of my position.

I am not against your plight, simply suggesting that there are alternatives.

A High Court judgement causes the perculation of findings to seep down and establish the reordering of argumentation. Experiences with the political machinations have further reinforced my position.
 
There are methods available to a party to seek support in a court when a McKenzie Friend is not permitted which are not immediately evident. By simply excusing one's self, a party turns to the supporting person and confers. Judges seem to be more tolerant of this mode. At times working within the existing protocols is more practicable. This actually occurred last Monday and no comment arose from the court. If there is a practice that is effective the import of legislation is not as evident to me.
I'll listen to your petitions being read in the Senate or the House. A direct representation to the AG, the policy persons in the Family Law section also might add to your persuasions.

One wishes you well Justin.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
justin said
those of us who have a mental impairment
With respect this confuses me because it is contradictory. If you have the faculty and ability to research McKenzie material and try to start a petition what problems did you have in the Family Court?

SRL-Resources said;
The poster obviously has very personal reasons for 'his' petition, however the reasoning is somewhat convoluted and incorrect in some areas. We would also like to remind the poster that this is Australia and not the UK. Historically in Australia McKenzie Friends do not have a good reputation, and institutional memory will remind the Courts of how this process was badly abused in the early 70s.


Yes, I do have very personal reasons for the petitions, they all stand on the foundation of denials of courses of justice sought, created by Laws of the Parliament in regard to the judicial power of the Commonwealth, by judges that include a judge seizing an initiating application to appeal that judges own orders.

A High Court judge later wrongly claimed, when determining a leave application for a course of action to correct that wrong and the wrongful orders of the first judge, that the appeal had been heard, denied, and special leave had been denied when an appeal had not been able to be instigated, therefore none of the claimed could have occured.

2 High Court judges later, when leave to appeal the judges' wrongful claim an appeal had been heard that had not been heard and other legal issues, was sought, these 2 judges exercised "special leave to appeal power" to deny a leave application without a hearing for Oral Argument with the statement the judges finding was not in doubt. No transcript of an Oral Hearing to prove otherwise due to no Oral Hearing allowed. The AG does, but does not want to, know about it.

But that is only the start of the reasons.

The McKenzie Friend issue arises because I have attempted to assist some Party's in their presentation of their matters in a few Courts. Although these Party's  had what was required written in front of them, the duress of presenting that and cross-examining of their Ex or the Family Reporter, caused a lot of evidence vital to their presentation/case to be short on its presentation.

This made the determination of the judge reliant on the small amounts of evidence obtained, that could be overlooked if the judge did not like the direction the judge should take because of admissions of wrongful statements and the appearance of fabricated evidence. 1 such judgement is still in the wind so I can say no more.

I appreciate the question of the rights and wrongs of a McKenzie Friend are very wide with good arguments on both sides. I believe the right of a Party to fairness (clearly unfair when a SRL faces highly experience Counsel) and the right to present the best case they can with what ever assistance available to them, hence the SRL_R area, must prevail for justice to be done and seen to be done.

Although a McKenzie Friend does not equal Counsel, they tend to put an unemotional or less emotional mind to the Party's thinking that lifts the Party's scale of an unbalanced scale in the same way it is claimed any, even poor representation is better than no representation. This is even more evident in the writing of affidavits where argument more often clouds the evidence that can be presented. I have often heard of judges complaining an affidavit of a SRL is somewhat verbose. On reading their affidavit you can see how their emotion has caused them to justify or argue the facts rather than just present the evidence. This wastes the time of the judge and Counsel, who have read and may address the statements with claims of inadmissible or irrelevant or the like.   

Verdad, sorry for my dry sense of humour, is it the judge or the AG who nominates a Case Guardian?

Your right, I have not put the McKenzie Friend issue directly to the AG or the policy persons in the Family Law section as you suggest. The petition is a public way of doing that which could otherwise be white-washed by his department as is my experience of his department to date.

The petition I was writing to be presented to the Honourable House was regarding issues that invoke consideration of s72(ii) of the Constitution regarding the title of a judge about to or has retired and brethren. While writing that petition I was attempting to act as a McKenzie Friend in a matter where on each occasion Counsel for the mother and ICL were so audible in their objections to any assistance I attempted to give, it caused me to seek this petition at the same time.       

SRL-Resources said;
At no stage has an SRL-R Exec ever been refused permission to act as a McKenzie Friend…

That is a broad statement to make but very encouraging to hear for those granted assistance from the SRL-R Exec. I have had the decision reserved a few times for a determination of the Friends presentation to be heard. The Friends presentation was verbose and the points to be made were lost in the wordiness of his ability to speak, to the point he was trying to present, I had trouble following.

The outcome of 1 of those was contraventions were returned to a judge who had said they could not hear them. This was because the mothers solicitor contradicted by misrepresenting the judges directions that should have been objected to and an objection was attempted without concise argument, hence months later these contraventions are still pending and not available at a Final Hearing, heard.

Yes Conan, a little knowledge can be dangerous, but is that not where most SRL's start from hence this site is in effect multiple McKenzie Friends giving assistance to Party's who walk the razors edge of s121?

Have there not been rulings that, in broad terms state; to reveal any fact or issue of a Family Law matter, other than that Court Published, to anyone other than a legal representative without leave of the Court is a breach of s121?  That would include your new partner would it not? lol. This is what caused some newspapers Contempt of Court hearings a few years ago is it not?

Does this mean the Court has granted this site general leave to be informed of any fact or issue in the Family Court? lol.

As I understand it, in England it has been reported some McKenzie Friends make a reasonable living from being just that. Like the SRL-R Exec's, they have gained experience knowledge and the respect of some judges, but they survive on donations.

My thinking is with the increase in SRL's and the increasing distrust of the legal reps there is an increasing need to legislate before rather than after the increased use of McKenzie Friends and appeals for unfairness increase.  

A lot of people come on this site espousing a personal viewpoint of what they want to do. Unfortunately many drag the helpers away from the important task of actually helping people. I would have thought it is easier for an organisation that has the contacts to push this issue
I would have thought that you would have joined SRL-R, I am sure they could do with more helpers.
justin said
Verdad, sorry for my dry sense of humour, is it the judge or the AG who nominates a Case Guardian?
I can answer that one  its a Judge.
justin said
Have there not been rulings that, in broad terms state; to reveal any fact or issue of a Family Law matter, other than that Court Published, to anyone other than a legal representative without leave of the Court is a breach of s121?  That would include your new partner would it not? lol. This is what caused some newspapers Contempt of Court hearings a few years ago is it not?
Does this mean the Court has granted this site general leave to be informed of any fact or issue in the Family Court? lol.
Whats with the 'lol'? I understand the largest forums on this site are the hidden ones only available to either SRLR members or the SRLR Execs. Section 121 is even mentioned as part of the site joining rules. Do you think that organisation would knowingly break Section 121?
justin said
As I understand it, in England it has been reported some McKenzie Friends make a reasonable living from being just that. Like the SRL-R Exec's, they have gained experience knowledge and the respect of some judges, but they survive on donations.
I dont think anybody would survive on donations here.

And like another poster said - this is Australia, not the UK.


Justin

If you have the capacities that you believe you hold then supporting persons before the court is to my mind is more warranted than trying to lobby politicians. The observations you have are not without merit. The capacity of persons to advocate their matter varies within both barristers and SRLs. Observing a supported SRL attain that which a barrister resists is to an extent liberating.

There is no substitute for preparation and a SRL is advantaged in that they are best positioned to contextualise the facts. Only the more skilled barristers can accomplish this. Watching a Senior Counsel as a mentor is a valuable lesson. These barristers do possess qualities which warrant rewards. Possibly not as much as they get. To an extent the fees paid by clients are magnified by the taxation they pay and the associated GST. Its a cycling on funds. There's another issue you might run with. In the end the cost of running the court is extracted form those whom are represented, more so than SRLs. Even the most experienced barristers learn on the job, those that don't are less convincing. Whenever a party runs on fabricated evidence these result in problematic advocation's. Often judges give SRLs significant assistance, they are at times oblivious to these instances. There is merit in discerning where a party is advantaged due to their inability to advocate their matter and comprehend the archaic forum, yet the best remedy I can observe is to support these people with a limited experiential understanding. Hopefully those supported support others and from these little things bigger things grow. It might be considered a silent movement that has it origins in the less than perfect legal industry.

What is to be appreciated that those less inclined to compromise are more likely to need the court to resolve that which their mental approaches inhibit. This is where I see the mental unwellness of parties before the court. More cases are resolved through negotiations than in the court. Reasonable people can manifest reasonable outcomes.

You have generated a mystery in that without knowing the judgements to which you are referring your portrayal of these matters are misleading in that any case has two or more parts. Should you provide details then it might be the basis to enter into a discourse from which all might learn.

The Family Court has a mysterious veil around it. It takes some time to appreciate that it is simply a workplace and many there are 'just going to work'. I personally have respect for the judges I have appeared before. When I'm honest with myself, and when I listen carefully, I find that I'm treat justly. They are the best teachers. The checks and balances in the system are able to maintain a trajectory which is derived from community values. From the culture arises the changes that the community deems appropriate. An evolution that has seen many changes in Family Law with a Genesis in communal discourses.

Effecting changes is an art form, especially legislative changes. Your pursuit requires more than the 'Power of One'. Through this website you might find the doors that lead to where you might wish to go. There are tentacles from this website that reach into Canberra. Do you feel that you have considered all the alternative paths to your goal? There is need of more changes than those related to McKenzie friends. I no longer see that as an impediment since becoming aware of how to sidestep a judge who holds to the antique traditions. Are you only interested in a single issue, or, do you appreciate that more significant changes are needed?

In the end Justin the immediate support of those before the court appears to be warranted. Might you agree? Are you going to join?

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
This post has been posted in the wrong topic due to this site is claiming I am a guest on every other topic other than this 1 even though I have signed in, WHY?

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